The National Treasury Employees Union (the
Union or NTEU) filed a request for assistance with the Federal Service Impasses
Panel (the Panel) to consider a negotiation impasse under the Federal Service
Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7119, between it
and the Department of Homeland Security (DHS), Border and Transportation
Security Directorate, Bureau of Customs and Border Protection (the Employer or
CBP), Washington, D.C.

Following an investigation of the Union’s
request for assistance concerning a dispute over the CBP’s uniform policy, the
Panel determined that the impasse should be resolved through single written
submissions.1/ The
parties were informed that after considering the entire record, the Panel would
take whatever action it deemed appropriate, which could include the issuance of
a Decision and Order. Written submissions supplementing their earlier
statements in BCBP were made pursuant to this procedure and the Panel has
now considered the entire record.

BACKGROUND

The Employer’s primary mission is to
prevent terrorists and terrorist weapons from entering the U.S. The Employer is
also responsible for, among other things, stemming the flow of illegal drugs and
other contraband from entering the U.S. The Union represents a nationwide unit
of approximately 11,000 employees who typically work as customs inspectors,
entry specialists, canine enforcement officers, import specialists, and in
various support staff positions, at grades GS-5 through -11. The collective
bargaining agreement (CBA) covering these parties expired on September 30, 1999;
except for permissive subjects of bargaining, the CBA’s terms will remain in
effect until a new agreement is negotiated.2/

ISSUE AT IMPASSE

The parties
disagree over where and under what circumstances employees should be permitted
to wear uniform cargo shorts.

POSITIONS OF THE PARTIES

1.The Union’s Position

The Union
proposes that the Employer maintain the status quo by allowing
"legacy" Customs Inspectors, Canine Enforcement Officers, and any
other uniformed legacy Customs officer to be permitted to wear cargo shorts in
all Class 3 environments.3/
"[R]etention of the status quo would enable employees to address the
extreme heat and humidity that exists at most, if not all, ports-of-entry,"
whether it be North Dakota, Maryland or Southern Florida. Contrary to the
Employer’s contention that cargo shorts do not project a professional image,
"at least 49 law enforcement agencies have not found that professionalism
is compromised"; and it provides "no evidence of on-the-job injuries
related to shorts," or an "analysis comparing injuries where shorts
are allowed and prohibited." Further, the current practice "would not,
and has not, adversely impacted their ability to meet the [Employer’s]
mission." The Employer’s proposal "is inherently disparate since it
arbitrarily limits the shorts option for some Officers but not others";
hence, the Employer’s objective of a consistent policy on uniforms is simply
not achieved. Moreover, permitting cargo shorts would not "disrupt the
workforce and distract" employees from performing anti-terrorism work
efforts, law enforcement, safety and other agency mission objectives. In
summary, CBP has had seven years to collect, analyze and provide evidence to
support its arguments that the agency’s mission would be impeded, but has
"failed to do so."

2. The Employer’s Position

The Employer
proposes that cargo shorts be an authorized trouser option in the Class 3
confined cargo environment only at the Southwest border locations, South
Florida, and Puerto Rico. This is in accordance with the Employer’s efforts
"to implement a consistent uniform policy for all inspectional
personnel."It is also consistent with the policy that two other
unions representing CBP employees agreed to in the fall of 2004,4/andwould assist the Employer in "maintaining its policy of
presenting a more consistent, law enforcement image." Moreover, the
proposal "gives consideration to and creates preventive measures for
extreme circumstances that would require diversion from the policy." It
safeguards employees from "increased potential injury/terminal
disease/death by keeping their vulnerable body parts from exposure to scrapes,
cuts, and sun damage." When given the option, the majority of employees
would "prefer" to keep their legs covered due to the nature of their
work. The Union’s proposal, on the other hand, should not be adopted
because it "would hinder the [Employer’s] efforts to unify its workforce
and integrate its functions." It would also preclude CBP from establishing
a "clear and consistent" policy to ensure "uniformity and ease of
identification of law enforcement perso